Constitution Check: Is the Second Amendment a barrier to “smart guns”?

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Lyle Denniston says a movement to promote the adoption of the so-called “smart gun” technology will most likely be opposed by lawyers working to promote robust Second Amendment rights.

THE STATEMENTS AT ISSUE:

“Industry pressure has prevented the market for safer guns from being allowed to take its course, and has kept safer guns off the market entirely….A firearms dealer in California recently offered a personalized handgun for sale, at least until it was pressured to stop selling it, according to various media reports. A firearms dealer in Maryland announced that he had received a personalized handgun from a manufacturer and intended to offer it for sale, until he received death threats and other pressure, at which point he stated that he would not sell the gun.”

– Excerpt from a lawsuit filed Monday in state court in New Jersey, seeking to compel state officials to begin enforcing a 2002 law that would lead to a ban on any handgun other than a so-called “smart gun” – a gun equipped so that it can be fired only by one technically able to fire it.

“I am the lead designer of the Armatix iPI, or so-called smart gun….The gun is yours alone. It is personalized. Because this technology provides a positive and safe experience, I believe the number of gun enthusiasts will rise. Families will be able to protect themselves from criminals while guaranteeing that a child cannot fire a gun.”

– Ernst Mauch, managing director of Armatix GmbH, a developer of firearms, with a plant near Munich, in an op-ed column May 18 in The Washington Post.

“ ‘Smart Guns’ is a made-up term for a conceptual firearm that incorporates technology that theoretically permits the gun to be used only by the authorized user. Failed attempts to develop and market ‘smart guns’ have been going on for years. NRA does not oppose new technological developments in firearms; however, we are opposed to government mandates that require the use of expensive, unreliable features, such as grips that would read your fingerprints before the gun will fire. And NRA recognizes that the ‘smart guns’ issue has the potential to mesh with the anti-gunner’s agenda, opening the door to a ban on all guns that do not possess the government-required technology.”

– Excerpt from the current policy statement of the National Rifle Association on smart-gun technology.

WE CHECKED THE CONSTITUTION, AND…

The Second Amendment, as interpreted by the Supreme Court, does not guarantee those who wish to have a gun the right to have any particular gun. But neither does it guarantee constitutional immunity to a government mandate to limit the kinds of gun that would be available, if that could be shown to infringe on the constitutional right to have a gun.

Six years ago, when the court first established a personal right to have a gun, under the Second Amendment, it said explicitly that nothing in its ruling “should be taken to cast doubt…on laws imposing conditions and qualifications on the commercial sale of arms.” And, as to the kind of guns that could be regulated or even banned, the court said that government could take action “prohibiting the carrying of dangerous and unusual weapons.”

But those are not very distinct words and phrases, and the court since then has not agreed to hear any case that would help to spell them out. Scores of lawsuits have been filed since that ruling in 2008, many by gun owners or their advocacy groups seeking to expand the core right of gun possession – especially, the right to have a gun outside one’s own home.

The aim of many, and perhaps most, of the lawsuits so far has been primarily to protect the carrying of handguns, because those are the kind most commonly in use and that gun rights advocates believe the Supreme Court most intended to protect.

But if there should turn out to be a strong new movement, among groups and politicians seeking more gun control, to press for restrictions on specific types of firearms, it is a virtual certainty that lawyers working to promote robust Second Amendment rights will be pursuing court challenges.

That is a prospect, it now appears, for a spreading movement to promote the adoption of the so-called “smart gun” as the preferred weapon — both to satisfy handgun ownership desires and simultaneously to make some gain in gun safety.

As that movement gains momentum, the focus of many observers is on New Jersey. Twelve years ago, that state’s legislature passed the Personalized Handgun Law. At that time, smart guns were an idea, but not yet much of a reality. The legislature said it enacted that measure, even if prematurely, because “it is within the public interest, and vital to the safety of our families and children, for New Jersey to take the bold and innovative step of fostering the development of personalized handguns by firearms manufacturers.”

This was not just an invitation for new experiments in safe-gun technology. The legislature backed up its aspirations by declaring that, as soon as a gun that “can be fired only by the authorized user” was produced and marketed anywhere in the U.S., that would start a three-year period to run, and at the end of that period, every handgun sold in New Jersey would have to be personalized.

The law also ordered state officials to report to the legislature every six months on how the development of smart guns was going. But, in a lawsuit filed Monday in Mercer County Superior Court, gun control advocates argued that state officials have not been keeping up with developments or filing the required reports, and contended that developments in technology have gone far enough that the three-year period should now start to run toward banning all handguns except the “smart” variety.

Depending upon how state courts react, and how state officials respond, New Jersey may well be in line for the start of a new constitutional wrangle over government power to dictate what guns will be available.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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